IMBARDELLI & IMBARDELLI - [2020] FamCA 876

FAMILY COURT OF AUSTRALIA

IMBARDELLI & IMBARDELLI

[2020] FamCA 876

FAMILY LAW – CHILDREN – PROPERTY SETTLEMENT – Where previous consent orders have been set aside under s79A of the Family Law Act – Where both property and parenting arrangements resolved by consent – Where it is nonetheless appropriate to record why these orders are in the best interests of the children and just and equitable – Where the family report finds there has been alignment by the children with the father and strong rejection of the mother – In light of this significant rejection of the mother, the family report recommends for there to be no contact with the mother until and if the children request such contact – Where both parents consent to orders in accordance with the recommendations of the family report writer – Where the agreed property settlement affords the wife an amount at the bottom end of the range which can be considered just and equitable – Where the wife consents to this on the basis that the father has financial responsibility for the three children and she wished the children to have the greater benefit of the remaining assets.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Imbardelli

FIRST RESPONDENT:

Mr Imbardelli

SECOND RESPONDENT:

Mr I Imbardelli

THIRD RESPONDENT:

K Pty Ltd

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

8876

2009

DATE DELIVERED:

5 November 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

5 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hutchings

SOLICITOR FOR THE APPLICANT:

AMT Legal

COUNSEL FOR THE FIRST RESPONDENT:

Mr Sheen

SOLICITOR FOR THE FIRST RESPONDENT:

Macpherson Kelley

SECOND RESPONDENT:

Mr I Imbardelli

THIRD RESPONDENT:

Mr I Imbardelli

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lonergan

Orders by Consent

Parenting

All previous parenting orders are discharged.
The parties have equal shared parental responsibility for the children D born … 2008, F and E both born … 2009 (“the children”).
The children live with the father.
The children spend time and communicate with the mother by agreement.
The father do all things necessary to facilitate any one of, or all the children communicating and/or spending time with the mother by agreement or upon any request by the children, or any of them and in the event that the children make such a request, the father notify the mother forthwith.
The father enrol in and complete a Parenting Orders Program and provide a Certificate of Completion to the mother.
The father to advise the Independent Children’s Lawyer of the details of the Parenting Orders Program into which he has enrolled and the Independent Children’s Lawyer is permitted to provide to the Parenting Orders Program convenor copies of the Family Reports prepared by Ms CC dated 8 December 2017 and 25 March 2019 and the Family Report prepared by Ms DD dated 9 September 2020 and a copy of this order.
The father will comply with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading IMBARDELLI & IMBARDELLI

Details

AGLC: IMBARDELLI & IMBARDELLI [2020] FamCA 876
Case: [2020] FamCA 876
Decision Date: 5 November 2020

CaseChat Overview and Summary

This matter concerned consent orders made by McEvoy J in the Family Court of Australia, resolving both property and parenting arrangements between the parties. The dispute arose following the setting aside of previous consent orders under s 79A of the *Family Law Act 1975* (Cth). The court was asked to record new orders that were considered to be in the best interests of the children and just and equitable.

The legal issues before the court included the appropriate parenting arrangements for the three children, given a family report indicating significant alignment with the father and strong rejection of the mother, leading to a recommendation for no contact with the mother unless requested by the children. Additionally, the court had to determine a just and equitable property settlement, where the wife was to receive an amount at the lower end of the acceptable range, with her consent based on the father having primary financial responsibility for the children and her wish for them to benefit more from the remaining assets.

McEvoy J's reasoning was guided by the consent of both parties to orders reflecting the recommendations of the family report writer regarding parenting. The court applied principles of family law concerning the best interests of children and the just and equitable division of property. The property settlement involved a significant payment to the wife, with detailed provisions for its discharge, including the potential sale of real property and indemnities for various liabilities.

The court made detailed orders by consent, discharging previous parenting and property orders. The children were to live with the father, with equal shared parental responsibility. The father was to facilitate communication and time with the mother as agreed or requested by the children. The property settlement involved substantial payments to the wife, with specific mechanisms for default and sale of property, and comprehensive indemnities to protect the wife from future liabilities. The court noted the parties' intention for the orders to finally determine their financial relationship and for the wife to file for divorce within 30 days.

Orders

Orders of the court

Orders by Consent

Parenting

1. All previous parenting orders are discharged.

2. The parties have equal shared parental responsibility for the children D born … 2008, F and E both born … 2009 (“the children”).

3. The children live with the father.

4. The children spend time and communicate with the mother by agreement.

5. The father do all things necessary to facilitate any one of, or all the children communicating and/or spending time with the mother by agreement or upon any request by the children, or any of them and in the event that the children make such a request, the father notify the mother forthwith.

6. The father enrol in and complete a Parenting Orders Program and provide a Certificate of Completion to the mother.

7. The father to advise the Independent Children’s Lawyer of the details of the Parenting Orders Program into which he has enrolled and the Independent Children’s Lawyer is permitted to provide to the Parenting Orders Program convenor copies of the Family Reports prepared by Ms CC dated 8 December 2017 and 25 March 2019 and the Family Report prepared by Ms DD dated 9 September 2020 and a copy of this order.

8. The father will comply with all reasonable directions as made by the convenor of the Parenting Orders Program as he/she considers necessary to facilitate the successful completion of the Parenting Orders Program and will further comply with any recommendations made by the convenor of the program that the father engage in further counselling or therapy upon the conclusion of the Parenting Orders Program as is considered necessary to further assist the father to address the issues raised in respect to him in the Family Reports.

9. The mother continue to engage with a treating Psychiatrist and follow their reasonable advice.

10. The father:

10. (a) advise the mother as soon as practicable in the event that any of the children suffer any serious illness or injury;

10. (b) authorise any medical, dental or any other allied health professional upon whom the child/children attend to communicate with the mother in respect of the child/children’s medical or other health conditions and/or requirements and provide copies of any documents that are ordinarily available to parents.

11. The mother be permitted to provide a copy of these orders to the children’s school and treating medical and other allied health professionals.

12. The father keep the mother advised at all times of the children’s residential address and mobile telephone numbers and notify the mother in writing within 7 days of any change to any of these details.

13. The parties keep the other advised at all times as to a current email and mobile telephone number upon which they can be contacted, together with the address/es where the children live and/or spend time on a regular basis.

14. The father do all such acts and things necessary and sign all such documents to authorise and instruct the school at which the child/children attend to provide to the mother the following:

14. (a) copies of school reports and photograph order forms; and

14. (b) copies of notices, newsletters and documents normally provide to parents including any access to school portals,

14. (c) and this order act as direct authority for the provision of same to the mother in the event the father does not otherwise so authorise.

15. The mother is at liberty to attend at:

15. (a) the children’s schools for all events that parents are routinely invited to attend including but not limited to parent teacher interviews, sporting events, and school productions; and

15. (b) extra-curricular activities that are routinely attended by parents such as tournaments and recitals,

15. provided that she not directly approach the children or any of them unless agreed between the parties NOTING THAT the children or any of them may approach her if they so choose.

16. The mother be at liberty to send letters, emails, cards and gifts to the children on special occasions and the father ensure they are provided to the relevant child/ren when they arrive.

17. The Independent Children’s Lawyer explain the final orders to the children within 30 days of the date of the orders made and the father do all acts and things required to facilitate same.

18. The father ensure the Family Report dated 9 September 2020 be provided to any counsellor, psychologist or psychiatrist that engages with the children or any of them and he be at liberty to also provide the reports by Ms CC dated 8 December 2017 and 25 March 2019.

19. The mother be at liberty to provide any or all of the Family Reports referred to above to any counsellor, psychologist or psychiatrist upon whom she attends.

20. Each party, by themselves or their servants and agents, be restrained from:

20. (a) abusing, insulting, belittling, rebuking or otherwise denigrating the other to, or in the presence of, or within the children and/or allowing the children to remain in the presence of, or within the hearing of any third party engaging in such behaviour;

20. (b) discussing these proceedings, and/or negotiations about parenting with or in the presence of the children, and/or allowing the children to remain in the presence of, or within the hearing of any third party engaging in such behaviour save for explaining living and contact arrangements pursuant to these Orders; and

20. (c) showing to, or leaving accessible to the children any document connected with these proceedings including any electronic documents.

21. The appointment of the Independent Children’s Lawyer be discharged following the meeting with the children as provided for in order 17 hereof and upon her providing documents to the convenor of the Parenting Orders Program as provided for in order 7 hereof.

Property

1. All extant property and spousal maintenance Orders be and are hereby discharged.

2. Within 7 days the entirety of the funds held by GG Lawyers on trust for the parties (currently approximately $423,000) be paid to the Wife.

3. Within 60 days (“the date”) the Husband pay the Wife the further sum of $244,000 (which together with the funds in paragraph 2 are “the payment”) and failing payment in full being made by the date, interest accrue on such unpaid amount as provided for in the Family Law Rules 2004 and such interest be included in the payment for the purpose of these Orders.

4. In default of the whole of the payment being made by the date, within 7 days of the date the Husband elect in writing as to which of the following real properties be sold to meet the amount outstanding on the payment, together with default interest:

4. (a) AA Street, BB Town in the State of Victoria; or

4. (b) B Street, Suburb C in the State of Victoria.

4. and in default of such nomination, it be the B Street property

4. (“the real property”).

5. The Husband may only nominate the AA Street property:

5. (a) upon the written advice of his accountant that he may then make the payment to the Wife lawfully free of any tax, penalty or other restriction with regard to relevant legislative requirements including but not limited to superannuation legislation and regulations, and upon such advice being provided to the Wife’s solicitor;

5. (b) if the payment to the Wife not be by way of superannuation split and such payment be free of tax, penalty, liability or restriction of any kind in the hands of the Wife.

6. In the event of the whole of the payment not being made by the date, the real property be placed on the market for sale within 21 days of the date and thereafter sold - and the Wife have the sole conduct of the sale including without limitation:

6. (a) the right to nominate and appoint the selling agent and provide all instructions to said agent;

6. (b) the right to nominate the Reserve price provided that such nomination is on the written advice of the selling agent and conveyed to the Husband;

6. (c) the right to choose the method for sale on the advice of the selling agent;

6. (d) the right to accept or reject offers to purchase;

6. (e) the right to nominate any conveyancer and/or solicitor to be involved in the sale on behalf of the vendor;

6. (“the sale”).

7. The Wife inform the Husband as to the selling agent and solicitor/conveyancer appointed in relation to the sale and provide them with authority to release all information relevant to the sale to the Husband.

8. The Husband and K Pty Ltd do all acts and things and sign all documents required to affect the sale in a timely manner, including provision of all documents and/or instructions to any professional appointed to act in the sale

9. The proceeds from the sale of the real property be applied as follows:

9. (a) first, to meet the costs and commission of the sales;

9. (b) secondly, to discharge any encumbrance secured by the real property;

9. (c) thirdly, to reimburse any costs incurred by the Wife in compliance with paragraph 6 herein, to the Wife;

9. (d) fourthly, to meet any amount of the payment outstanding to the Wife, together with penalty interest calculated in accordance with the Family Law Rules 2004;

9. (e) lastly, the balance to the legal owner of the property.

10. Upon the whole of the payment being made in full, the Wife cause all caveats lodged by her or on her behalf over any of the properties of the parties to be withdrawn.

11. The Husband and K Pty Ltd be jointly and severally liable for paying and do indemnify the Wife and keep her indemnified as to any and all liabilities including taxation liabilities, past present or future which have arisen or may arise from:

11. (a) the sale, and distribution of proceeds from the sale of the real property pursuant to these orders;

11. (b) the operation of the Imbardelli Superannuation Fund including without limitation that which may arise from his choice to make any portion of the payment to the Wife from the proceeds of sale of the AA Street property;

11. (c) the operation of the Imbardelli Family Trust including without limitation that which may arise from his choice to make any portion of the payment to the Wife from the proceeds of sale of the B Street property and/or any distribution or loan in the Wife’s or any of their children’s names;

11. (d) the operation of any entity in which the Husband has any interest including without limitation any distribution or loan in the Wife’s or any of their children’s names

12. There be a general liberty to apply in relation to the sale of the real property and as to the nomination provided for in paragraphs 4 & 5 herein.

13. The Husband indemnify the Wife and keep her indemnified against any claim whatsoever that arises from any act, omission or debt occurring up until the date of this order where the claim is brought by a member of his family including but not limited to the second respondent (Mr I Imbardelli), Ms Z Imbardelli, Ms Todd, Mr M or Ms G Imbardelli or any of their entities.

14. The Second Respondent’s Application contained within his Response to an Initiating Application filed 6 March 2020:

14. (a) be dismissed in so far as it sought any payment from the Wife, or sought to make any claim as against the proceeds from the sale of the Suburb J property;

14. (b) be withdrawn with the leave of the Court in so far as it sought repayment of monies allegedly owed by the Husband NOTING THAT the Husband agrees that the application has not been heard on its merits and the Second Respondent may bring such action in another jurisdiction if he so chooses.

15. Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:

15. (a) each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders;

15. (b) any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears, any joints account shall be divided equally;

15. (c) each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;

15. (d) all insurance policies are to become the sole property of the owner named hereon;

15. (e) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

15. (f) any joint tenancy of the Husband and Wife in any real or personal estate is hereby expressly severed.

16. All parties sign all documents and do all acts and things necessary to facilitate these Orders, including for the sale/s of real properties, failing which then a Registrar of the Melbourne Registry of the Family Court of Australia is hereby appointed under section 106A of the Family Law Act 1975 (Cth) to sign or execute such necessary sale documentation on behalf of the defaulting party upon lodgement of such documentation and the filing of an affidavit of a solicitor on behalf of the Wife as to the said failure.

17. All extant applications be otherwise dismissed, specifically including the Wife’s application for ongoing spousal maintenance and any outstanding applications for costs, whether reserved or not.

IT IS DIRECTED

18. That the Minute of Consent Orders remain on the Court file.

AND THE COURT NOTES

A. That pursuant to s 81 of the Family Law Act 1975 (Cth), the parties intend these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

B. The parties agree that the Wife will cause an Application for divorce to be filed within 30 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Imbardelli & Imbardelli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.